RESTRICTED  WORLD TRADE  
ORGANIZATION  IP/C/M/54 
26 July 2007 
 
 (07-3196) 
Council for Trade-Related Aspects 
of Intellectual Property Rights  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard on 5 June 2007  
 
Chairman:  Ambassador Yonov Agah (Nigeria) 
  
 The present document contains the record of the discussion which took place during the 
TRIPS Council meeting held on 5 June 2007. 
 
 Subjects discussed
         P a g e  n o s .  
 
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT .........................................................4  
B. REVIEWS OF NATIONAL IMPLEMENTING LEGISLATION ..............................................................6  
C. REVIEW OF THE PROVISIONS OF ARTICLE 27.3( B)......................................................................7  
D. RELATIONSHIP BETWEEN THE TRIPS  AGREEMENT AND THE CONVENTION ON 
BIOLOGICAL DIVERSITY .............................................................................................................7  
E. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE ...................................................7  
F. NON-VIOLATION AND SITUATION COMPLAINTS .......................................................................16  
G. REVIEW OF IMPLEMENTATION OF THE TRIPS  AGREEMENT UNDER ARTICLE 71.1..................17  
H. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON 
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2  OF THE TRIPS  AGREEMENT ..................17  
I. FOLLOW -UP TO THE FOURTH ANNUAL REVIEW UNDER PARAGRAPH 2 OF THE 
DECISION ON THE IMPLEMENTATION OF ARTICLE 66.2  OF THE TRIPS  AGREEMENT ...............18  
J. TECHNICAL COOPERATION AND CAPACITY -BUILDING ............................................................19  
K. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS (PART III OF THE TRIPS  
AGREEMENT ) – COMMUNICATION FROM SWITZERLAND .........................................................20  
L. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO ..............................26  
M. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS ...............26  
N. OTHER BUSINESS ......................................................................................................................27  IP/C/M/54 
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1. In proposing the agenda for adoption, the Chairman
 said that item K on "Enforcement of 
Intellectual Property Rights (Part III of the Agreem ent) – Communication from Switzerland" had been 
put on the proposed agenda at the written requ est of the delegation of Switzerland, dated 
23 May 2007.  He proposed that the Council adopt the agenda as proposed. 
2. The representative of China  said that his delegation had con cerns with putting this item on the 
agenda.  The position of China, as well as that of othe r developing countries, had always been that the 
enforcement of IPRs was not within the mandate of  the TRIPS Council, that such discussion would go 
against the spirit of Article 1.1 of the TRIPS Agreem ent and that it would only duplicate the work that 
was already being done by other international organizations, especially the WIPO Advisory 
Committee on Enforcement.  Any substantive discu ssion of the item would therefore be a waste of 
time of this Council.  Enforcement of IPRs was no t an isolated issue and should therefore not be 
treated separately from the implementation of the Agreement as a whole. There were many other 
issues such as the relationship between appropriate  protection of IPRs and the economic and social 
development objectives of developing countries, the relationship between IPR protection and the 
transfer of technology, the issue of TRIPS and public  health and that of TRIPS and the Convention on 
Biological Diversity (CBD), which were mandate d items of discussion and more importance should 
be attached to them than to the issue of enforcement.  His delegation was therefore of the view that 
this item should not be put on the agenda of th is or any future meetings of the Council. 
3. The representative of Brazil  said that the item on enforcement had now been put on the 
agenda of the Council a number of times by a group of developed countries.  His delegation had stated 
at each occasion it's view, namely that the subm issions made under the heading of enforcement did 
not fall within the mandate of the Council.  He agr eed with China that there was a considerable degree 
of duplication of efforts in these submissions, not only with WIPO but also with initiatives regarding 
border measures that were being taken in the Wo rld Customs Organization (WCO) and Interpol. He 
agreed that the issue should not be discussed in an is olated fashion.  References to enforcement in the 
TRIPS Agreement were of a lesser nature in terms of commitments for Members and those references 
appeared in a broader context which was respectfu l of the freedom of Members to implement their 
obligations in the most suitable way in light of  their national priorities and national legislative 
systems.  The proposed discussion could hinder the sc ope of application of Articles 1.1 and Article 40 
of the Agreement, which both applied to this matte r.  Other elements of the debate, which were 
interrelated with this matter, but did not appear in  the submissions on enforcement, were the issues of 
intellectual property and social economic development,  the interrelationship of IPRs and transfer of 
technology and the issue of anti-competitive practices.  Just because a group of countries had repeatedly put this item on the agenda of the Coun cil, it should not be assumed that there was any 
agreement among Members that this constituted a pe rmanent item on the agenda.  There was no such 
agreement and his delegation did not support such a view. 
4. The representative of Argentina
 said that it was the understanding of her delegation that the 
item was not a permanent item on the agenda of the TRIPS Council. 
5. The representative of India  said that, while his delegation could accept the agenda as 
proposed in WTO/AIR/3016/Rev.1, he wished to clar ify that this acceptance of the inclusion of 
agenda item K should not be construed as its a cceptance of the inclusion of that item on the 
permanent agenda of the Council or of its willingn ess to engage substantively on issues raised by 
Members under this agenda item.  
6. The representative of the Philippines  said that, like India, his delegation would defer to the 
collective judgement of the Council on the acceptance of the agenda item.  However, his delegation 
would prefer that such a discussion be deferre d until there was some commonality of views among 
Members and that until then no presentation would be vi ewed as closure to this debate.  Furthermore,  IP/C/M/54 
 Page 3 
 
 
  his delegation would also oppose the view that agreement to any presentation from Switzerland would 
create an expectation or an obligation for ot her Members to make a similar presentation. 
7. The representative of Cuba  agreed with the statements made by previous Members, in 
particular those of China and Brazil. 
8. The representative of Venezuela  agreed with the statements made by previous Members.  
9. The representative of Switzerland  said that his delegation had taken good note of the 
statements made.  Switzerland had announced at th e last Council meeting its intention to make a 
communication on this item and to share experiences with other Members who were interested in the 
subject matter and who would wish to do so.  By observing the procedural requirements to include 
such an item on the agenda, his delegation was not  purporting that this was now a permanent item on 
the Council's agenda.  Rather, the aim had been  to simply enable Switzerland to present its 
communication.  His delegation remained convinced that the subject matter of its communication and 
of the agenda item was a very important topic an d fell within the mandate of the Council.  He 
believed that Members could benefit from each othe r's experiences in implementing provisions that 
were contained in the TRIPS Agreement and wh ich often presented a challenge for Members to 
implement in an effective and workable manner.  He was looking forward to exchange views and 
experiences with those Members who wanted to enga ge in discussion.  He was aware that not all 
Members were willing to do so and said that that was to be respected.  
10. The representative of th e European Communities  said that his delegation was surprised by the 
arguments put forward to oppose a discussion which was extremely pertinent to the work of the 
Council.  Article 68 of the TRIPS Agreement clea rly stated that the Council should monitor the 
operation of the Agreement and in particular Member s compliance with their obligations, so that the 
issue in question was squarely within the mandate of the Council.  Furthermore, no Member had the 
intention to erode Members' rights to chose the appropriate means of implementing the Agreement 
under its Article 1.1.  It should, ho wever, be clear that the freedom to choose the appropriate means of 
implementation did not amount to a freedom whether or not to apply the Agreement at all.  Finally, in 
response to the argument that there were other important topics like transfer of technology that should 
rather be discussed, he said that these topics were on the agenda and that if any Members wanted to 
present documents on these topics his delegation woul d be ready to examine them.  His delegation 
supported the Swiss statement and agreed that Memb ers should not start censoring each other.  Every 
Member had topics on the agenda that it preferred to others, but his delega tion had never tried to 
prevent anybody from putting relevant items on the ag enda.  His delegation was ready to examine all 
the topics that had been raised but would insist that  each delegation had the righ t to put relevant items 
on the agenda of the Council.  
11.   The representative of Japan  said that for his delegation the past discussions on the item of 
enforcement introduced by the United States a nd the European Communities at previous Council 
sessions had been very helpful and he hoped that  this discussion would continue under the item 
introduced by Switzerland.  His delegation agreed that each Member can determine the appropriate 
means of implementing the TRIPS provisions under Artic le 1.1, but that he believed that the exchange 
of experiences among Members increased the optio ns that each Member, while taking into account 
the unique aspects of its own situation, would be  able to choose from in determining the most 
appropriate means of implementation in the most effi cient manner.  Such enrichment of alternatives 
would contribute to solving the world-wide count erfeiting and piracy problems.  The TRIPS Council 
was one of the appropriate forums for such ex changes of information because the experts on the 
TRIPS Agreement were present.  Therefore, hi s delegation welcomed the introduction of this 
exchange of experiences and methods on an on-going basis, in order to provide each Member with 
more alternatives of combating counterfeiting and piracy.  IP/C/M/54 
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  12. The representative of Canada
 said that his delegation agreed with others that item K was an 
appropriate item on the agenda, that it was clea rly within the mandate of the Council and Members 
should not judge the relative importance of an issue if one Member considered it important to put it on 
the agenda.  In view of activities in other forums, he said that while Canada was also active in the 
discussions in these other forums, his delegation saw value in discussing the issue in the TRIPS 
Council. 
13. The representative of China  noted that a document on the dispute China – Measures affecting 
protection and enforcement of IPR  had been put in the document compilation for the TRIPS Council 
meeting and asked the Secretariat whether any Member  had requested the inclusion of this document 
and, if not, whether its inclus ion was procedurally justified. 
14. The representative of the Secretariat  informed the Council that the document in question was 
also an intellectual property document as documents  relating to disputes on intellectual property, in 
accordance with the practice under the DSU, were also circulated in the IP/D/ -series of documents.  
Furthermore, the TRIPS Council had always ha d an item on its agenda under which the Chair 
informed Members of relevant developments elsewher e in the WTO.  Under this item, Chairs had in 
the past years updated Members on developments  relating to disputes concerning the TRIPS 
Agreement.  Usually there had not been any subs tantive discussion under the item, but it had been 
treated purely as an information item so that dele gates, especially those from intellectual property 
offices who may not habitually consult other WTO documents, were kept informed of relevant 
developments elsewhere in the WTO. 
15. The Council took note  of the statements made and adopted  the agenda as proposed. 
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT  
16. The Chairman  informed the Council that, since its meeting in February, it had received a 
number of supplements and updates to earlier notif ications of laws and regulations notified under 
Article 63.2 of the Agreement.  The European  Commission had notified a Council Regulation on the 
protection of geographical indications and designa tions of origin for agricultural products and 
foodstuffs and a Commission Regulation laying down  detailed rules of implementation of the said 
Council Regulation;  and the Form er Yugoslav Republic of Macedonia had notified amendments to its 
Industrial Property Law.  These notifications were being circulated in the IP/N/1/- series of documents.  In addition, Swaziland had provide d its responses to the Checklist of Issues on 
Enforcement.  These responses were available as an advance copy of document IP/N/6/SWZ/1. 
17. He recalled that, among the Members whose trans itional period under Artic le 65.2 or 65.3 had 
expired on 1 January 2000 or who had acceded to the WTO, there still remained two who had not yet 
submitted any notification concerning their implementi ng legislation, namely Saint Kitts and Nevis;  
and Saint Vincent and the Grenadines.  The Secret ariat had been in contact with the respective 
delegations in order to assist in the matter.  He urged those Members whose initial notifications 
remained incomplete to submit the outstanding mate rial without delay, a nd reminded other Members 
of their obligation to notify any subsequent amendm ents of their laws and regulations without delay 
after their entry into force.  In particular, he reminded those Members who had made any changes to 
their laws and/or regulations to implement the decision on "Implementation of Paragraph 6 of the 
Doha Declaration on the TRIPS Agreement and Pub lic Health" and who had not yet notified such 
changes to the Council to do so. 
18. The representative of Morocco
 said that, since the creation of the WTO, Morocco had been 
striving to adapt its domestic legislation and regulat ions to the provisions of the TRIPS Agreement.  
The purpose of this exercise had been to establis h an effective machinery for the protection of 
intellectual property rights, capable of fostering creat ivity and innovation, of promoting the inflow of  IP/C/M/54 
 Page 5 
 
 
  foreign investment, and of enabling the domestic production apparatus to benefit from transfer of 
technology, thus contributing to the modernization of  the country's economy and its full integration in 
the global economy. 
19. The review conducted by the TRIPS Council in  June 2001 had revealed that the Moroccan 
legislation in its entirety was consistent with th e provisions of the TRIPS Agreement.  Morocco had 
fulfilled all of its transparency obligations under Ar ticle 63.2 of the Agreement by notifying every one 
of the texts that it had submitted to the Council dur ing the mentioned review.  During 2006, Morocco 
had completed a new reform of its domestic legislation and regulations  in various areas of intellectual 
property.  This reform was motivated by a desire to  update domestic legislati on with new international 
rules capable of responding effectively to the ev olution of technology in the information and 
communication society;  ensure that intellectual property rights are efficiently safeguarded while 
strengthening the protection of ri ght holders and consumers agains t counterfeiting and piracy;  and 
fulfil its commitments under the free trade agreem ents concluded with a number of its trading 
partners. 
20. Thus, Morocco had proceeded to adopt a series of texts aimed at amending and completing its 
body of legislation on the protection of intellect ual property.  These incl uded two important laws, 
No. 34-05 amending and completing the Law on Copy right and Related Rights, and Law No. 31-05 
amending and completing the Law on the Protection of Industrial Property.  Taken as a whole, these 
two laws guaranteed respect for the two fundament al principles of the TRIPS Agreement, namely 
national and most-favoured-nation treatment.  
21. Law No. 34-05 amending and completing Law No . 2.00 on copyright and related rights 
provided for the addition of new provisions wh ich consisted essentially of the following:  
(1) adaptation of certain definitions to internationa l conventions;  (2) improvement of exclusive rights 
of holders of copyright and related rights;  (3) exte nsion of the term of protection of economic rights;  
(4) special requirements relating to border measures;  (5) extension of the presumption of ownership 
to cover not only the author, but also the performer, the producer of a phonogram or the publisher;  
(6) legal protection against the circumvention of  technological measures;  (7) legal remedy of 
protection of rights-management information;  (8 ) strengthening of protective measures and civil and 
criminal penalties;  (9) establishment of a limited li ability regime for service providers with a view to 
establishing procedures that permit effective action against any infringement of copyright or related 
rights. 
22. Law No. 31-05 amending and completing the La w on the Protection of Industrial Property 
served to update the national industrial propert y system and modernize the procedure for filing 
industrial property applications.  The main cont ributions of Law No. 31-05 in updating the national 
industrial property system were the establishment of a system for opposing trademark registration;  
the creation of a national register of geographical i ndications and appellations of  origin and the related 
system of opposition;  and the strengthening of bord er measures for imports of goods suspected of 
being counterfeit goods.  
23. To modernize the procedure for filing industria l property applications, the Law amending and 
completing Law No. 17-97 contained new provisions  which help to streamline the application 
procedure, in keeping with the demands of economic  operators for greater flexibility.  These provided 
for request for further proceedings;  extension of th e term of protection of th e patent;  extension to 
12 months of the period during which an inventor may disclose his invention prior to the date of filing 
of the patent application;  and possibility of elect ronic filing of applications for the registration of 
trademarks.  An implementing decree for Law No. 17- 97 on the protection of industrial property was 
also adopted, and entered into force upon publication.  IP/C/M/54 
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  24. It should also be stressed that the competent national authorities adopted three other 
regulatory texts to strengthen border measures:  Join t Order issued by the Ministry of Finance and 
Privatization and the Ministry of Industry, Tr ade and Economic Renewal No. 206-06 of 7 moharrem 
1457 (6 February 2006) laying down the conditions  for implementation of Chapter VII (Border 
Measures) of Law No. 17-97 on the protection of industrial property;  Circular of 1 April 2006 
relating to the new customs regulations on border me asures aimed at strengthening the protection of 
intellectual property rights;  Circular No. 5051 re lating to border measures to combat counterfeiting 
and piracy with respect to copyright and related rights.   
25. Morocco was adopting these measures in order to honour the commitments it had made under 
the TRIPS Agreement.  The representative reaffirm ed Morocco's commitment to pursuing the same 
course and assured Members that all of these legisl ative and regulatory texts would be submitted to 
the WTO in the coming days. 
26. The representative of th e European Communities
 thanked the delegation of Morocco for its 
comprehensive statement and congratulated Morocco  for the important legislative accomplishment. 
27. The Council took note  of the statements made. 
B. REVIEWS OF NATIONAL IMPLEMENTING LEGISLATION  
(i) Follow-up to reviews already undertaken 
28. The Chairman  said that, with regard to the reviews of national implementing legislation that 
had been initiated at the Council's meetings sin ce April 2001, eight reviews still remained on the 
Council's agenda.  These reviews concerned Cuba;  Fiji;  Grenada;  Mauritius;  Saint Kitts and Nevis;  
Saint Vincent and the Grenadines;  Suriname;  and Swaziland.  The Council had just received 
responses form Swaziland to most of the questions posed to it in its review. These responses were 
available as an advance copy. 
29. The representative of Cuba  said that the pending legislation on certain matters would be 
approved very shortly.  At the l ast moment before the approval, it had been determined necessary to 
introduce some small changes to the patent legisl ation, which had prevented immediate approval.  
Answers to the outstanding questions were being pr epared.  As soon as they had been approved, the 
four laws would be notified and the answer s to the outstanding questions be provided. 
30. The representative of Mauritius  said that his delegation had submitted its responses the 
previous day and that his delegation remained at the disposal of Members for any further questions. 
31. The representative of Swaziland  said that his delegation had ma de every effort to respond to 
the questions raised by Members.  However, there were a few remaining quest ions to which responses 
would be delivered within the next two weeks. 
32. The Chairman  said that a number of questions had al so been raised with regard to the 
implementing legislation of certa in Members whose reviews had al ready been deleted from the 
Council's agenda on the understanding that any dele gation should feel free to revert to any matter 
stemming from the review at any time.  These Memb ers were Dominica, Gabon, Ghana and Guyana. 
33. He urged the delegations con cerned to provide the outstanding material as soon as possible, 
so as to allow the Council to complete the follow-up to these reviews. 
34. The Council took note  of the information provided and agreed  to revert to the matter at its 
next meeting.  IP/C/M/54 
 Page 7 
 
 
  (ii) Arrangements for the review of national implementing legislation of Viet Nam 
35. The Chairman  recalled that, at its meeting in Februa ry, the Council had agreed that it would 
take up the review of TRIPS implementing legislation of Viet Nam, a newly acceded Member, at its first meeting in 2008 and that it would come back to  the arrangements for this review, in particular the 
deadline for questions and responses, at the present meeting.  As requested by the Council, the 
Secretariat had been in contact with the delegation of Viet Nam to draw its attention to the TRIPS 
obligations relating to notificati on of implementing legislation. 
36. The representative of Viet Nam
 said that her delegation was available to respond to any 
questions Members might have.  Viet Nam had ma de an extensive presentation on its legislation 
during the accession process.  She believed that answer s to most questions could already be found in 
these accession documents.  She welcomed any spec ific questions or concerns from other Members 
which her delegation woul d be happy to address. 
37. The Chairman  noted that the first Council meeting for 2008 had not yet been scheduled, but 
that it would be expected to take place, as usual, in February or early March.  In light of the statement 
by Viet Nam and using this approximate date, and in accordance with the sta ndard procedures for the 
review of legislation, he proposed that the Council set the following target dates for the submission of 
questions and answers in this review: 
- Questions should be submitted to Viet Nam, with a copy to the Secretariat, 10 weeks 
before the meeting in which the review w ould take place.  Accordingly, the target 
date should be set for 26 November 2007. 
- Responses to questions posed within that deadline should normally be submitted four 
weeks before the meeting. Accordingly, th e target date should be set for 7 January 
2008.  
In case there were any delays with Viet Nam's initia l notification, the Council could revisit these dates 
at its next meeting scheduled for 23 and 24 October 2007. 
38. The Council so agreed . 
C. REVIEW OF THE PROVISIONS OF ARTICLE 27.3( B) 
D. RELATIONSHIP BETWEEN THE TRIPS  AGREEMENT AND THE CONVENTION ON BIOLOGICAL 
DIVERSITY  
E. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE  
39. The Chairman  recalled that, at its meeting in March 2006, the Council had agreed to maintain 
its present method of work on these matters, and to  keep this method under review to assess whether 
any change might prove appropriate in the light of  developments.  He therefore suggested that the 
Council continue its past practice of discussing these  three agenda items together on the basis of the 
contributions by Members.  He informed the Counc il that, since its meeting in February 2007, the 
Bolivarian Republic of Venezuela had requested to  be added to the list of co-sponsors of the 
disclosure proposal circulated as document IP/C/W/474 (issued with the joint symbols 
WT/GC/W/564/Rev.2 and TN/C/W/41/Rev.2).  Addendum 3 to that document had been issued to this 
effect.  In addition, Norway had provided its responses to a number of questions posed to it by 
Switzerland in writing, which had been circulated  in document IP/C/W/491 (issued with the joint 
symbols WT/GC/111 and TN/C/W/46).  He recalled th at, at its meeting in October 2006, the Council 
had had before it a new communication from Peru (d ocument IP/C/W/484) that provided comments in IP/C/M/54 
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  relation to an earlier communication from the Un ited States in document IP/C/W/469.  At the 
Council's meeting in February 2007, some delegati ons had indicated that, due to the absence of the 
Peruvian delegation at that meeting, they had wish ed to defer their comments on that document until 
the present meeting. 
40. The representative of Uganda, speaking on behalf of the African Group
, requested that the 
African Group be added to the list of co-sponsors of  the disclosure proposal contained in document 
IP/C/W/474 (issued with the joint symbols WT/G C/W/564/Rev.2 and TN/C/W/41/Rev.2) submitted 
by Brazil, China, Colombia, Cuba, India,  Pakistan, Peru, Thailand and Tanzania.1  He said that the 
positive elements underscored by the disclosure propo sal would create a win-win situation for genetic 
material providers and patent holders.  The African  Group supported the requirement of disclosure of 
origin of biological resources and/or associated tr aditional knowledge, the concept of prior consent to 
obtain genetic materials or resources, and a detaile d plan of a fair and equitable benefit-sharing 
mechanism. 
41. The representative of Lesotho, speaking on behalf of the LDC Group in the WTO , said that 
the LDC Group fully supported the disclosure proposal by Brazil, China, Colombia, Cuba, India, 
Pakistan, Peru, Thailand and Tanzania in respect  of the outstanding implementation issue on the 
relationship between the TRIPS Agreement and the CBD.  He said that the LDCs recognized the 
positive elements of the proposal, such as the requirement of disclosure of origin of biological resources and/or associated traditional knowledge, th e concept of prior consent to obtain genetic 
materials, as well as a detailed plan for a fair and eq uitable benefit-sharing mechanism.  He said that 
this issue was important to the LDCs given the a bundance of genetic materials/resources in the LDCs.  
The LDCs would be appreciative of a mechanism from which they could retrospectively benefit. 
42. The representative of Angola
 fully supported the statements ma de by Uganda on behalf of the 
African Group and by Lesotho on behalf of the LDCs.  He said that African countries, as well as Asian and Latin American countries, were faced by  the problem of misappropriation and biopiracy of 
genetic resources and traditional knowledge.  The implementation of the relationship between the 
TRIPS Agreement and the CBD foresaw appropriate  protection of genetic resources and traditional 
knowledge at the international level, as well as allo wing proper prior consent and covering the issue 
of benefit sharing.  He said that it was neces sary to address the problem thoroughly in order to 
effectively tackle the issue of biopiracy whic h was unacceptably spreading and damaging indigenous 
communities.  This issue was a developmental is sue and should therefore be brought upon the Doha 
Development Round.  In conclusion, he urged Memb ers to recognize the importance of the issue and 
to engage in constructive discussions. 
43. The representative of United States
 said that, as one of several Members that saw no conflict 
between the TRIPS Agreement and the CBD, his dele gation considered that these agreements could 
and should be implemented in a mutually supporti ve manner and that no amendment to the TRIPS 
Agreement was needed or warranted.  The numerous  written submissions had contributed to useful 
discussion in the Council, but they had generally co nfirmed a wide divergence of views on how to 
address these issues.  In this light, it was premature to engage in text-based discussions on this matter.  
Instead, future work, consistent with Members' ma ndate, should continue with fact-based discussions, 
analyzing actual examples, and illustrating the per ceived concerns.  This work should include in 
particular examination of existing access and benefit-sh aring regimes as this appeared to be directly 
related to the perception of misappropriation 
44. He then made comments on document IP/C/W/484 submitted by Peru.  He said that countries 
had sovereign rights over their natu ral resources and had the power to regulate access to their genetic 
                                                      
1 Subsequently circulated as document IP/C/W/474/Add.4 with the joint symbols 
WT/GC/W/564/Rev.2/Add.4 and TN/C/W/41/Rev.2/Add.4.  IP/C/M/54 
 Page 9 
 
 
  resources.  Generally this regulation would take the form of access and benefit-sharing systems, 
including conditions for appropriate access.  The Un ited States had long advocated such systems that 
would include a contract-based system.  The cont ract-based system would include provisions for 
mutually agreed terms that would regulate behaviour of researchers and other interested parties with 
respect to the use of genetic resources.  The Unite d States had described this system in its national 
parks in document IP/C/W/393.   
45. Referring to the objectives sought to be achieved through the proposed disclosure 
requirements, including monitoring the use of geneti c resources, examining compatibility with patent 
criteria, and compliance with obligations on approp riate access and equitable benefit sharing laid 
down by the CBD, he said that the disclosure re quirements would not achieve these goals.  His 
delegation, nonetheless, remained willing to work through specific examples to gain a better 
understanding of other Members' concerns  and to resolve divergent views.   
46. Regarding Peru's statement that the majority of patent applications did not disclose the origin 
of genetic resources, he said that many of the pate nts involving genetic resources cited as examples of 
misappropriation had, in fact, disclosed the source and/or origin of the biological material.  
Responding to Peru's statement that even where orig in was indicated a precise origin was not clearly 
established, he said that in the case of turmeric the patent not only identified India as the country of origin for turmeric but also identified a specific s ource in the United States from which the particular 
turmeric used by the inventor had been obtaine d.  Nonetheless, this information was entirely 
irrelevant to the question of compatibility with pa tentability criteria and did not achieve the objectives 
sought. 
47. Members should enquire into how existing access and benefit-sharing systems dealt with the 
genetic resources that had been exported as raw material for direct consumption or industrial 
processing or traded as commodities and how this might impact perceptions of illegal or wrongful behaviour rather than advocate burdensome remedies that would not address underlying problems.  In 
his view, the disclosure requirements would not addr ess large volumes of genetic resources that might 
be exported from countries through normal commercia l channels and eventually used as starting 
materials for research and/or innovation as these we re exempted or unregulated by national access and 
benefit-sharing systems.   
48. Regarding some Members' concern that in sp ite of the existing access and benefit-sharing 
systems misappropriation persisted, he said that a more complete understanding or analysis of the 
existing system would help to identify gaps and to define  the extent and nature of the perceived 
wrongful acts.  Finally, he thanked Peru for its clarification that document IP/C/W/484 addressed 
potential or possible cases of misappropriation and was not meant to insinuate that all patent 
applications or granted patents that involved genetic resources or traditional knowledge had been 
obtained illegally or irregularly. 
49. The representative of China
 said that discussion on these matters should be pursued with a 
sense of urgency.  It had been articulated by ma ny developing Members, including China, that the 
failure of the TRIPS Agreement to extend protectio n to genetic resources a nd traditional knowledge,  
which developing country Members enjoyed in abunda nce, was one of the factors leading to the 
imbalance in the TRIPS Agreement and in the multila teral trading system as a whole.  The Doha 
Round was labelled as a development one and its results  would not be complete or successful if it fell 
short of correcting this imbalance. 
50. He said that some developing Members, including China, had put forward a joint proposal to 
amend the TRIPS Agreement through the integrati on into the Agreement of the principles adopted 
under the CBD, such as national sovereignty, prior in formed consent and benefit sharing.  The joint 
proposal and the draft amendment contained th erein had received extensive support from WTO IP/C/M/54 
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  Members, including both developed and developing  Members, particularly the African Group and the 
LDC Group.  Therefore, he urged Members to enga ge in text-based negotiations.  He said that the 
fact-based discussion proposed by some Members would postpone the discussion of the main issues 
and result in a blank page in the final document of the Doha Round. 
51. While welcoming the constructive attitude of Norway, he took note of the substantial 
difference between Norway’s proposal and the joint pr oposal, particularly with regard to the nature of 
the disclosure requirements.  His delegation w as ready to discuss this further with Norway. 
52. The representative of Tanzania
 associated his delegation with the statements made by 
Uganda, on behalf of the African Group, and by Le sotho, on behalf of the LDCs.  He said that the 
market for natural products deri ved from genetic resources had been expanding in recent years.  The 
advance of biotechnological innovation involved  both access to genetic resources and access to 
associated traditional knowledge.  Historically, ge netic resources had been accessed worldwide freely 
and without significant restrictions.  With increasi ng demands for fair and equitable allocation of 
benefits arising out of the use of genetic res ources and associated traditional knowledge, there needed 
to be governance of access to genetic resources.  The CBD, to which not all WTO Members were 
signatories, adopted the objective of fair and equitable benefit sharing.  WTO Members should 
establish a mutually supportive relationship between  the TRIPS Agreement and the CBD.  He said 
that the issue of the relationship between the TRIPS Agreement and the CBD was a development 
issue and that it was important to reduce poverty in developing countries and LDCs, where most  
people lived in rural areas and depended on natura l resources for their livelihoods.  Members should 
introduce new mechanisms to increase access to natu ral resources and to ensure equitable sharing of 
the benefits arising out of the sustainable use of the resources. 
53. The representative of Brazil  said that, in his view, the objectives of the disclosure proposal 
was shared by all Members.  No Member s upported misappropriation of  genetic resources and 
traditional knowledge and all the Members wished to  prevent erroneously granted patents.  Mutual 
supportiveness between the TRIPS Agreement and th e CBD could be enhanced through disclosure 
requirements.  Under the TRIPS Agreement, count ries had no obligation to examine whether there 
was misappropriation of genetic resources and traditi onal knowledge in patent applications.  In the 
absence of the disclosure requirements, national pate nt offices did not have a sound basis to evaluate 
prior art when examining patent applications and therefore the quality of patents was undermined.   
54. He said that national regimes for the pr otection of genetic resources and traditional 
knowledge were proliferating, but different national solutions might lead to different levels of 
protection.  Therefore, it was valuable to negotiate  a standard solution under the TRIPS Agreement to 
avoid developed and developing co untries adopting different solutions  within their national systems 
and having different interpretations of the permi ssiveness of the TRIPS Agreement.  The disclosure 
requirement should be a multilateral mandatory requireme nt and an integral element of the intellectual 
property system under the TRIPS Agreement.  The most efficient way to have such a standard 
solution was to amend the TRIPS Agreement so that the international dimension of this issue would 
be adequately addressed. 
55. In his view, Norway's disclosure proposal wa s a positive and constructive contribution to the 
debate in the Council.  Regarding other techni cal proposals which made reference to WIPO and 
WIPO treaties, he said that some elements in these proposals could apply to a TRIPS solution with a view to achieving greater inclusiveness of views. 
56. He underlined the importance his delegation attach ed to the statements made by the African 
Group and the LDC Group at this meeting.  To his understanding, the African Group had requested to co-sponsor the disclosure proposal and LDCs had decide d to support the proposal.  He said that with 
the inclusion of the African Group, a majority of  developing country Members now co-sponsored the  IP/C/M/54 
 Page 11 
 
 
  disclosure proposal. Thus, this issue was a developm ent issue and should be an important element of 
the outcome of the Doha Round.  Referring to ongo ing informal consultations on this matter, he 
indicated that the political will to discuss the issue was gaining moment um in the context of the Doha 
Round, particularly at the higher level of discussions  on solutions to the Doha Round.  He informed 
the Council that different technical solutions were being examined with an open mind in the context 
of informal consultations.  A wide divergence of views was narrowing not only because of recent 
development in informal consultations but also b ecause of the growing support to the amendment of 
the TRIPS Agreement from Members.   
57. Regarding the suggestion of text-based discussi ons, he said that some Members had decided 
not to address the amendment proposal and that th ese Members were losing an opportunity to deepen 
their understanding of the proposal, especially it s technical, legal and political implications.  
However, he understood that it was a political decision  to have text-based discussions in the informal 
consultations in the context of the treatment of outstanding implementation issues of the Doha Round.  
The TRIPS Council would continue to be a forum to hold technical discussions on the amendment 
proposal.  Finally, he expressed his delegation's willingness to further explore the disclosure proposal 
with a view to deepening Members' understanding of the issue and moving forward constructively. 
58. The representative of Canada  said that other international forums, including the CBD, the 
WIPO and the FAO, had established expertise an d capacity in this area, and were undertaking 
significant technical discussions.  He underscored the progress that had been accomplished with respect to genetic resources at the 10
th session of the WIPO Intergovernmental Committee on 
Intellectual Property and Genetic Resources, Traditio nal Knowledge and Folklore (IGC), and said that 
his delegation looked forward to pu rsuing substantive work within the WIPO IGC in July 2007. 
59. Regarding the work in the TRIPS Council, he reaffirmed Canada's view that the most 
meaningful way to advance the discussion on the re lationship between the TRIPS Agreement and the 
CBD was to engage in fact-based discussions of th e various proposals made in the TRIPS Council and 
that time and consideration should be given to a fu ll scoping of the issue before proceeding further.  
He suggested that the Council should particularly  focus on those Members that had either best 
practices to share or had experienced particular pr oblems.  He encouraged Members to consider other 
mechanisms to protect biodivers ity and prevent misappropriation of  genetic resources, such as 
developing broader globally accessible and functional prior art databases, using mutually agreed terms 
in material transfer agreements, licensi ng, codes of conduct and other contracts. 
60. With respect to the proposal to amend the TRIPS Agreement to introduce a mandatory 
disclosure of country of origin of genetic resources in patent applications, he  said that his delegation 
had not been shown that there was a contradic tion between the TRIPS Agreement and the CBD and 
therefore was not yet convinced of the need for such an amendment. 
61. He posed a question to Peru about whether the information in Peru's database systems for the 
registration of traditional knowle dge of indigenous people was treated differently depending on 
whether or not it was in the public domain. 
62. The representative of Uganda  reaffirmed that the Africa Group was co-sponsoring the 
disclosure proposal made by the group of developing countries. 
63. The representative of Norway  said that the discussion in the Council had strengthened his 
delegation's belief that there was an emergi ng consensus among WTO Members that the TRIPS 
Agreement and the CBD could and should be implem ented in a mutually supportive manner and that 
the interaction between the two agreements would be enhanced by inserting a disclosure obligation in 
the TRIPS Agreement.  Therefore, he supported th e amendment of the TRIPS Agreement to introduce IP/C/M/54 
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  a mandatory disclosure requirement.  His delegation was ready to engage in text-based negotiations 
with a view to adopting the amendment as soon as possible. 
64. The representative of Japan
 said that the discussion of th e relationship between the TRIPS 
Agreement and the CBD involved two issues: errone ously granted patents and compliance with the 
CBD objectives of prior informed consent and benef it sharing.  Regarding the issue of compliance 
with the CBD objectives, he said that, as indicated by the United States and Canada, more fact-based 
analysis was needed.  Regarding traditional know ledge and folklore, he said that Members should 
establish some basic understanding of traditional know ledge and folklore, such as the subject matter 
of protection, right holders, benefit to society, and the relationship between traditional knowledge and 
intellectual property rights.  He informed the Counc il that these issues would continue to be discussed 
at the WIPO IGC in July 2007. 
65. Regarding the issue of erroneously granted patents,  he said that this issue could be solved by 
improved database systems.  According to Japan's  proposal, each Member would collect information 
on genetic resources and related trad itional knowledge in its country an d store the information in its 
own databases.  Customary laws would be used to  address certain sensitive issues, such as identifying 
the holder of genetic resources and coordinating with  different interested parties.  Meanwhile, WIPO 
could establish a web portal with a s earch engine that would allow pa tent examiners to have direct 
access to Members' databases for the purpose of prio r art search.  Through adding an internet address 
authentication system to the portal site, access would be restricted to the internet addresses registered 
with WIPO, and access to other non-registered internet addresses would be blocked.   Each 
intellectual property office that conducted patent exam ination, would have a specific internet address 
registered, and thus the use of the site would be  limited to these intellectual property offices.  The 
portal site would allow patent examiners to use any known useful information, such as a patent 
application number, to conduct the search.  He said th at as technical expertise was needed to construct 
such database systems, WIPO might be an appropr iate forum for further detailed discussions on this 
issue. 
66. The representative of India  supported the statements made by Brazil and China.  His 
delegation was extremely concerned about the cont inuing misappropriation of  traditional knowledge 
through the granting of intellectual property right s to individuals and companies for commercial 
purpose.  He said that the US Patent and Tr ademark Office (USPTO) had issued 150 copyrights 
related to yoga, 124 patents on yoga accessories, a nd 2,315 yoga-related trademarks.  Since there were 
several English books on yoga and these books were utilized by yoga instructors, the argument about 
the lack of access to available information and docu ments was invalid.  In his view, there was no case 
under which the USPTO could permit the granting of intellectual property rights on yoga.  He urged 
the US authorities to review these intellectual propert y rights.  In his view, all intellectual property 
rights granted on yoga should be revoked. 
67. The representative of Chinese Taipei  said that his delegation had not yet decided its position 
on the issue of the relationship between the TRIP S Agreement and the CBD.  He noted that, as 
proposed by Norway in document IP/C/W/473, the supplier country of traditional knowledge must be 
disclosed even if the traditional knowledge had no  connection with genetic resources.  He asked 
whether the disclosure requirements should apply to pa tent applications in non-biotechnology fields;  
what fields would be covered by the disclosure requirements;  whether the disclosure requirements 
proposal exceeded the Doha mandate;  whether no tification of traditional knowledge that had no 
connection with genetic resources should also be delivered through the CBD Clearing-House 
Mechanism according to the simple notification system proposed by Norway. 
68. He recalled that, in response to Switzerland's question about who would be regarded as the 
holder of traditional knowledge, Norway had indicated  that the issue would be regulated in national 
laws.  He informed the Council that his delegati on was experiencing difficulty in deciding who the  IP/C/M/54 
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  holder of traditional knowledge w ould be, particularly in cases where the knowledge was not recorded 
in writing.  As Chinese Taipei was currently in the process of drafting a law for the protection of 
indigenous traditional knowledge which would require the establishm ent of databases, he wished 
other Members to share their national experiences in this regard. 
69. He asked whether patent applicants who had obt ained relevant genetic resources through legal 
purchase on an open market would be required to disc lose source or country of origin of the genetic 
resource.  He said that, according to his delegati on's experience and research, in the majority of 
relevant patent applications, ge netic resources were acquired in this way and some developing 
Members' regulations excluded the application of  the mandatory disclosure requirements in these 
cases. 
70. The representative of Korea  said that his delegation's position on these three items remained 
unchanged.  His delegation had not yet been convinced of the need to amend the TRIPS Agreement as 
it saw no conflict with the CBD.  He said that fact-based discussions would help Members understand practices which successfully tackle d the issues without hampering intellectual property systems.  
Therefore, his delegation supported the continuation of fact-based discussions so that Members could 
address stakeholders' legitimate interests a nd concerns and find desirable solutions. 
71. The representative of Thailand
 said that his delegation had co-sponsored the proposal of 
amendment of the TRIPS Agreement in order to insert Article 29 bis on a mandatory requirement of 
disclosure of origin of biological resources and/or associated traditional knowledge .  He said that bio-
piracy had been of great concern to his delegati on.  Without adequate and effective protection of 
genetic resources and traditional knowledge at the inte rnational level, the problem of misappropriation 
of genetic resources and traditional knowledge would continue.  He said that Members had the right to 
grant their consent for access to their genetic res ources and traditional knowledge which were used as 
part of patent applications.  Accordingly, the amendment proposal was both logical and timely.  He 
said that the application of the disclosure requi rements would be modest and limited to patent 
protection.  The issue of misappropriation of ge netic resources and traditional knowledge should be 
part of the outcome of the Doha Development Round given the substantia l support extended by the 
African Group and the LDCs at this meeting.  Acco rdingly, he suggested that Members start text-
based negotiations. 
72. The representative of Pakistan  said that an amendment to the TRIPS Agreement was the only 
solution to biopiracy and would provide adequate protection to traditional knowledge and folklore.  
The co-sponsorship of the disclosure proposal, espec ially by the African Group and the LDCs,  the 
proposal by Norway and the interest shown by other Members in both formal and informal talks gave 
credence to his delegation's objective of achieving a balanced outcome in a breakthrough in the Doha 
Round. 
73. The representative of New Zealand  said that his delegation shared the concerns of both 
developed and developing count ries over misappropriation of genetic resources and traditional 
knowledge and appropriate mechanisms  of equitable access and benef it sharing.  He agreed with 
Brazil that there was common ground among Members.  As a developed country, New Zealand was biologically diverse and had a significant indigenous  interest in the preservation of genetic resources 
and traditional knowledge.  Domestical ly, the issue was at the heart of a substantial commission of 
enquiry, which had been going for many years and w as due to conclude in the next two years.  He 
said that fact-based discussions, including the di scussion of specific cases and national access and 
benefit sharing regimes, would help Members unde rstand the extent of misappropriation and how to 
implement existing systems more successfully.  To this end, his delegation had shared its national 
experience with others.  He consider ed that it was appropriate for the Council to continue to pursue its 
work programme in this manner.  In addition, he said that there was merit in discussing the 
establishment of databases as suggested by Jap an in order to improve prior art search. IP/C/M/54 
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  74. The representative of Australia
 said that the TRIPS Agreement and the CBD were consistent 
and capable of being implemented in a mutually  supportive manner.  His delegation did not support 
commencing negotiations on an amendment of the TRIPS Agreement at this time.  The issues surrounding access to biological resources and traditi onal knowledge were complex and international 
discussions were still progressing.  He informed th e Council that the WIPO IGC had requested its 
Secretariat to prepare a document for the 11
th session in July 2007 that listed options for its further 
work, including work in the area of the disclosur e requirement and alternative proposals for dealing 
with the relationship between intellectual propert y and genetic resources, the interface between the 
patent system and genetic resources, intellectua l property aspects of access and benefit-sharing 
contracts, and a factual update of international deve lopments relevant to genetic resources.  Given the 
extent of work being undertaken in WIPO, he said that the TRIPS Council should consider the 
discussion and information in WIPO before  commencing negotiations on these issues. 
75. He said that Australia agreed that the equitabl e sharing of benefits from the use of genetic 
resources and/or traditional knowledge was important.  However, Australia was still uncertain about 
the efficacy of a TRIPS amendment as a mechanis m for ensuring compliance with national access and 
benefit-sharing and prior informed consent regi mes.  His delegation was concerned about the 
implications of the mandatory disclosure requirement for the integrity of the patent system, impact on 
users of the patent system and the administrative cap acity of patent offices.  He said that the potential 
impact of remedies for false disclosure or non-disc losure that involved discontinuance of patent 
applications or invalidation of patents, the admini strative and technical capacity of patent offices to 
assess compliance with foreign access and benefit shari ng and prior informed consent regimes - if this 
were an element of the disclosure requirement - and the introduction of additional costs to users 
during the patent application process, were particular concerns. 
76. He then raised some questions about the di sclosure proposals by the European Communities, 
Norway and Switzerland.  In relation to Norway's  proposal, he asked whether it would be enough to 
satisfy the proposed disclosure requirement for pate nt applicants to make a statement that prior 
informed consent and access and benefit sharing had been obtained;  whether compliance with 
relevant national laws had to be confirmed by patent authorities;   and how the disclosure requirements 
would ensure that novelty criteria were met.  Regarding Switzerland's proposal, he questioned 
whether a refusal to process a patent application could be regarded as a de facto  rejection of a patent 
application on the basis of non-compliance with a formal requirement;  whether there had been 
adequate consideration of how the concept of tr aditional knowledge associated with genetic resources 
could be defined;  and what leve l of contact with genetic resources  might be sufficient to identify 
properties relevant for the invention in order to trigger a disclosure requirement.  Regarding the EC 
proposal, he sought confirmation from the European Communities that it did not include a disclosure 
requirement in relation to prior informed consent and access and benefit sharing and raised the same 
question he had posed to Switzerland on trigger. 
77. In conclusion, he said that there was a shar ed objective in the Council, and that it was 
important to build consensus on the nature and sc ope of the problems concerned before beginning to 
develop appropriate a nd effective solutions. 
78. The representative of the United States  supported the statement made by Australia and 
supported further consideration of Japan's initiative for the establishment of databases.  He said that it 
was important in analyzing direct pragmatic soluti ons to Members' concerns.  Responding to India's 
intervention on intellectual property rights relating to  yoga in the United States, he said that it seemed 
to lump together the concepts of patents, trad emarks and copyright.  He wondered whether India 
suggested that fixation in videos should not be su bject to copyright or related rights.  He looked 
forward to following up bilaterally with India an d consulting with the capital in order to correct 
misconceptions and resolve perceived concerns.  IP/C/M/54 
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  79. The representative of th e European Communities  said that his delegation would continue to 
be committed to the work on these th ree issues in an open and constructive spirit.  He said that the 
flexibility of the TRIPS Agreement and the availability  of other international instruments, such as the 
CBD, enabled Members to address these issues in a satisfactory manner.  When necessary, his 
delegation was prepared to look into concrete solu tions to the problems raised by other Members and 
to consider limited accommodation of intellectual prope rty systems in order to ensure a more effective 
interplay between the TRIPS Agreement and the CBD .  He recalled that, in document IP/C/W/383, 
his delegation had agreed to discuss the possibility of introducing a system, such as a disclosure requirement.  The merit of the system was to ensu re transparency and to allow the authorities of 
countries which granted access to their genetic resources  to keep track of patent applications based on 
the use of these resources.  The introduction of the disclosure requirement would not achieve in itself 
the objectives of the CBD but, provided it was appr opriately calibrated, it could contribute to a 
solution, in particular to help to check whethe r contractual arrangements had been respected.   
80. The introduction of the disclosure requirement should not affect the balance of rights and 
obligations set out in the TRIPS Agreement, nor the right of WTO Members to create a favourable 
environment for R&D activities.  The patent system  should continue to be an effective tool for 
stimulating innovation, technological progress and ec onomic development.  The introduction of the 
disclosure requirement should not be burdensome to th e patent system.  In particular, patent offices 
should not be required to verify the conditions under which the genetic  resource had been obtained.   
The role of the patent office would be limited to  examining whether formal requirements had been 
fulfilled and whether patent applicants who declared that their inventions were using genetic resources 
had subsequently disclosed appropriate information. 
81. Responding to the question raised by Australia about what information should be disclosed, 
he confirmed that the patent applicant would only be required to disclose origin or source of genetic 
resources and that there was no requirement to di sclose evidence of prior informed consent and 
benefit sharing.  The patent applicant should not be confronted with insurmountable formalities but 
should provide the information that he knew.  Regarding the question about the trigger for the 
disclosure requirement, he said that, under the EC pr oposal submitted to WIPO, the invention must be 
directly based on specific genetic resources.  Regard ing the legal effect of non-compliance with the 
disclosure requirement, he said that if the info rmation provided was inco rrect or incomplete, 
appropriate sanctions outside the ambit of pate nt laws should be app lied.  Sanctions for non-
compliance should not include the revocation of gran ted patents.  Each country had the right to 
determine the character and the level of these sanc tions in accordance with their national laws and 
practices.  If the patent applicant failed or refu sed to declare the required information before the 
granting of the patent, despite being given the op portunity to remedy that omission, the patent 
application would not be further processed in accordance with the formal requirement and the applicant should be duly info rmed of this consequence. 
82. The representative of Peru
 said that the CBD recognized countries' sovereign rights over their 
natural resources.  The TRIPS Council should discuss to what extent intellectual property protection 
could ensure the effective implementation of th e CBD objectives and how to implement the TRIPS 
Agreement and the CBD in a mutually supportive manner.  He said that text-based negotiations, 
especially based on the developing countries' discl osure proposal recently su pported by the African 
Group and the LDCs, would enable Members to address all their concerns. 
83. Responding to the question raised by Canada a bout whether the information in the Peruvian 
database system for the registration of traditiona l knowledge was treated differently depending on 
whether or not it was in the public domain, he said that Peru had established databases for the 
registration of traditional knowledge  of indigenous people in light of Law 27811 on the protection of 
traditional knowledge of indigenous  people.  There were two types of registers:  a national public 
register and a confidential register.  If indigenous  people decided to register traditional knowledge as IP/C/M/54 
Page 16  
 
  collective knowledge, they could use the confidential  register so that the knowledge would remain 
within  the community and would not fall into th e public domain.  Due to the work done by the 
Peruvian Government and various institutions, some  indigenous communities in the Peruvian Amazon 
region had used the registers through the National Anti-Biopiracy Commission and 25 registrations had been recently made of traditional knowledge. 
84. He further said that his delegation supported No rway's responses to the questions raised by 
Switzerland regarding its disclosure proposal. He sought clarification on some terms used in Norway's 
proposal, such as the supplier country, as their Span ish translation was probably not accurate.  He 
suggested that Members use the terms and definitions  contained in the developing countries' proposal 
for future discussion. 
85. The representative of Brazil
 said that the disclosure proposal by a group of developing 
countries did not seek to give national patent offices a role of verifying whether patent applications 
complied with the CBD requirements.  The disclos ure requirements would be in the nature of a 
transparent and traceable measure which was also the objective contained in the proposals by the 
European Communities and Switzerland.  He said that  paragraph 19 of the Doha Declaration did not 
require Members to determine whether there w as conflict between the TRIPS Agreement and the 
CBD.   Instead, Members had a mandate to examin e the relationship between these two agreements.  
Therefore, Members should focus on how to make th e two agreements more mutually supportive of 
each other.  Regarding the establishment of da tabases, he expressed his concern over further 
exposition of traditional knowledge and said that, be fore having a transparent and traceable measure 
such as the disclosure requirements to prevent misappropriation of genetic  resources and traditional 
knowledge and erroneously granted patents, his delegation woul d not consider the establishment of 
such databases. 
86. The representative of Ecuador  said that the relationship between the TRIPS Agreement and 
the CBD was a development issue and should be an  essential element of the outcome of the Doha 
Round.  The TRIPS Agreement and the CBD should be  implemented in an effective complementary 
manner.  Members should try to find common ground between these two agreements.  He considered 
Norway's proposal as a step forward in seeking e ffective results.  He expressed his delegation's 
willingness to participate in c onsultations on this issue. 
87. The representative of Venezuela  said that, as a co-sponsor of the disclosure proposal, his 
delegation supported the statements  made by other co-sponsors.  He said that those Members who 
were not in favour of the amendment of the TR IPS Agreement underestimated the gravity of bio-
piracy.  Regarding the suggestion for moving these three issues to WIPO, he said that as WIPO did 
not include the same member countries as the WTO,  these issues should be addressed in the WTO.  
He said that, as recognized by a great majority in the TRIPS Council, the TRIPS Agreement and the CBD should be complementary to each other. 
88. The Council took note
 of the statements made under these three agenda items and agreed  to 
revert to them at its next meeting. 
F. NON-VIOLATION AND SITUATION COMPLAINTS  
89. The Chairman  recalled that paragraph 45 of the Hong Kong Ministerial Declaration directed 
the TRIPS Council to continue its examination of th e scope and modalities for complaints of the types 
provided for under subparagraphs  1(b) and 1(c) of Article XXIII of GATT 1994 and make 
recommendations to the next session of the Minister ial Conference.  It was agreed that in the 
meantime, Members would not initiate such  complaints under the TRIPS Agreement.  IP/C/M/54 
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  90. He further recalled that, at its meeting in Marc h 2006, the Council had agreed to keep the item 
on non-violation and situation complaints on the agenda as a regular item so as to allow Members 
who would have new thinking to share it, and also enable the Council to consider improved ways of 
organizing its work on this matter. 
91. The Council agreed  to revert to the matter at its next meeting. 
G. REVIEW OF IMPLEMENTATION OF THE TRIPS  AGREEMENT UNDER ARTICLE 71.1 
92. No statements were made  under this agenda item. 
93. The Council agreed  to revert to the matter at its next meeting. 
H. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL 
INDICATIONS UNDER ARTICLE 24.2  OF THE TRIPS  AGREEMENT  
94. The Chairman  recalled that Article 24.2 provided that the Council shall keep the application 
of the provisions of the GI Section of the Agreem ent under review.  Since its meeting in February, the 
Council had received responses from Honduras to the Checklist of Questions contained in document IP/C/13 and Add.1 (IP/C/W/117/Add.31). 
95. He further recalled that, at its last meeting, th e Council had agreed that the Chair hold further 
consultations in due course on how  the Council should organize its future work on the review.  Given 
that he had not received any representations from dele gations on the issue, he had not yet held such 
further consultations.  However, he said that he remained ready to hold such consultations once he 
would sense an active interest in pursuing the matter. 
96. He urged those delegations that had not yet pr ovided responses to the Checklist of Questions 
to do so.  He also said that those Members that had already provided responses could provide updates 
to the extent to which there had been any signifi cant changes to the way they provided protection to 
geographical indications. 
97. The representative of  the European Communities
 said that it was important to move forward 
on this issue.  Several ideas had been put forward as to how to structure further work.  Two things 
were essential in this regard.  First, focus should be placed in line with Article 24.2 on the application 
of the TRIPS provisions on GIs, rather than on implementing legislation which had already been 
reviewed under item B.  Secondly, one should take  advantage of the good work already done, 
particularly of the replies to the Checklist of Qu estions and the excellent summary paper prepared by 
the Secretariat (IP/C/W/253/Rev.1).  This paper already contained information on how Members 
applied their obligations and practical examples.  Th erefore, it would be helpful to structure future 
work based on the different sections of this paper.   This would allow Members to comment issues in 
relation to the summary paper and enable them to  draw lessons from each other's replies to the 
Checklist of Questions. 
98. The representative of Australia  welcomed the flexible approach expressed by the European 
Communities.  Australia was willing to discuss the application of the TRIPS GI provisions and remained open to addressing any issues of concern Memb ers might have in that regard consistent with 
Article 24.2.  In terms of structure, Australia proposed a systematic and focused approach which 
would entail going through each provisions of the TRIPS Agreement, one by one.  As regards the approach proposed by the European  Communities to use of the headi ngs in the Secretariat summary 
paper of 2003, he wished to have a better understa nding of the purpose of the exercise and what was 
driving the EC approach.  He also questioned the currency of the Secretariat's paper, recalling that 
many Members, including proponents of increased pr otection, had not responded to the Checklist of IP/C/M/54 
Page 18  
 
  Questions that formed the b asis of the summary.  He welcomed the responses received from 
Honduras.  In determining the structure of future work , it had to be kept in mind that Article  24.2 was 
a surveillance provision that allowed Members to ra ise any concerns they might have regarding the 
application of the relevant provisions.  In the past it had been used for that purpose. 
99. The representative of the United States
 supported the intervention by Australia and expressed 
his appreciation of the Secretariat's efforts in compiling Members' responses to the Checklist.  He 
supported discussing GI obligations based on a wa lk-through of the Agreement, as originally 
suggested by Australia.  If useful, su ch an approach could be partially informed by elements contained 
in the Secretariat's compilation and, perhaps, in clude elements that concerned Members such as the 
European Communities could suggest.  However, the basic approach should be a provision-by-
provision walk-through. 
100. The representative of Switzerland  thanked Honduras for providing  responses to the Checklist 
and encouraged other Members who had not yet provided responses to do so.  This would allow 
updating the Secretariat's summary in due course and even improving its currency.  The review of Article 24.2 was important because it contained a built- in mandate that the Council needed to fulfil.  
As already agreed during the Uruguay Round, the purpose was to review the application of the 
provisions of the GI Section, but not to review the provisions as such.  A number of years ago, the Council had agreed to structure its work based on the headings of the updated version of the 
Secretariat's summary.  As this work had not ye t been concluded, the Council should continue from 
where it had left.  He appreciated the Chair's re adiness to consult on the matter and registered his 
delegation's interest to be i nvolved in such consultations. 
101. The representative of Canada
 thanked Honduras for its responses that assisted the work before 
the Council.  She agreed with th e comments made by Australia and supported the pragmatic approach 
suggested by the United States. 
102. Responding to Australia, the European Communities  said that its approach was driven merely  
by the application of the TRIPS Agreement.  As to the suggested provision-by-provision review, he 
said that Article 24.2 mentioned the review of the app lication of the provisions and not a review of the 
provisions.  This meant a systemic approach, i.e. a review of the functioning of the system, and not simply a legalistic provision-by-provision appro ach.  He failed to see what was wrong with the 
Secretariat's summary and why this 87 page comp rehensive document could not be a starting point.  
He continued to insist that the Council start on the basis of that document. 
103. The Chairman reiterated that he remained read y to hold consultations on the way forward on 
this matter. 
104. The Council took note
 of the statements made. 
I. FOLLOW -UP TO THE FOURTH ANNUAL REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON 
THE IMPLEMENTATION OF ARTICLE 66.2  OF THE TRIPS  AGREEMENT  
(i) Follow-up to the fourth annual review 
105. The Chairman recalled that, at its meeting in Octo ber 2006, the Council had taken up its 
fourth annual review of develope d country Members' reports on thei r implementation of Article 66.2 
of the TRIPS Agreement.  In concluding the foll ow-up to that review at the Council's meeting in 
February 2007, the Chair had said that, given th at only few least-devel oped country Members had 
been present at that meeting, there would be a further opportunity to make comments on the 
information submitted at the present meeting.  IP/C/M/54 
 Page 19 
 
 
  106. The representative of Bangladesh  said that Article 66.2 of the TRIPS Agreement asked 
developed country Members to provide incentives to  their enterprises and institutions for promoting 
and encouraging technology transfer to LDCs.  This paragraph was meant to ensure that new 
technologies would reach LDCs, the most vulnerable group in global economic scenario, so that they 
would have a chance to create a competitive technological base.  His delegation was grateful to the 
Members who regularly updated the TRIPS Council as to the activities and initiatives that were being 
taken to comply with this Artic le and called upon other developed country Members to do the same.  
He said that the reports were quite detailed and in formed the Council on the initiatives being taken by 
the respective governments.  He appreciated their sincerity to the cause of LDCs.  However, LDCs 
were interested in knowing how the technical assist ance featured in the reports had actually led to 
transfer of technology.  Specific examples of suc cessful technology transfer would be helpful in 
enabling the comparison and compilation of best practices in this priority area. 
107. International trade was led by the private sect or.  LDCs had been trying to strengthen their 
private sectors, for which technology transfer was a key element.  His delegation was interested in 
knowing from each developed country Member about the incentives and policies which they had been 
providing or planned to provide to their enterprise s and institutions for promoting technology transfer 
to LDCs and particularly how the private se ctor was responding to these incentives.  Specific 
examples would be helpful for the purpose of unde rstanding developments in  this regard and of 
following best practices. 
108. The Chairman  urged developed country Members to come to the Council's next meeting 
prepared to respond to the questions raised by Bangladesh. 
109. The Council took note  of the statements made. 
(ii) Arrangements for the fifth annual review 
110. The Chairman  recalled that paragraph 1 of the decision on the "Implementation of 
Article 66.2 of the TRIPS Agreement" provided that developed country Members should annually 
submit reports on actions taken or planned in pursuance of their commitments under Article 66.2.  To 
this end, every third year, new detailed reports were  to be provided and, in the intervening years, 
updates were to be provided to their most recent re ports.  These reports were to be submitted prior to 
the last Council meeting scheduled for the year in question.  Paragraph 3 of the decision determined 
the information that had to be provided in th ese reports.  New detailed annual reports under the 
Decision had been presented to the Council's mee ting in October 2006.  Therefore, this year 
developed country Members should submit updates to these reports prior to the Council's end of year 
meeting that had been scheduled for 23-24 October.  As provided in paragraph 2 of the Decision, the 
Council should review these updates at that meeting. 
111. Accordingly, he suggested that developed count ry Members be requested to submit updates to 
the reports that they had provided in 2006 on actions  they had taken or planned in pursuance of their 
commitments under Article 66.2 by 28 September in or der to allow their timely circulation and review 
at the Council's meeting in October. 
112. The Council so agreed . 
J. TECHNICAL COOPERATION AND CAPACITY -BUILDING  
(i) Annual updates on technical cooperation activities 
113. The Chairman said that the Council had trad itionally undertaken its annual review of 
technical cooperation each autumn.  He therefore s uggested that the Council hold its annual review of IP/C/M/54 
Page 20  
 
  technical cooperation at its next meeting scheduled  for 23-24 October.  Accordingly, he suggested 
that the Council once more invite developed co untry Members to supply information on their 
activities pursuant to Article 67 of the TRIPS Agreem ent.  Other Members who also made available 
technical cooperation were encouraged to share info rmation on these activities if they so wished.  He 
also suggested that the Council once more invite those intergovernmental organizations that had 
observer status in the TRIPS Council to provide in formation on their activities of relevance and that 
the WTO Secretariat might also be instructed to report on its activities.  Furthermore, he suggested 
that the Council request that this information be  made available by 28 September 2007 in order to 
allow its timely circulation before the meeting. 
114. The Council so agreed
. 
(ii) Other matters 
115. The Chairman  recalled that the provisions of the TRIPS Council's 2005 decision on the 
extension of LDCs' transition period provided that "w ith a view to facilitating targeted technical and 
financial cooperation programmes, all the least-d eveloped country Members will provide to the 
Council for TRIPS, preferably by the 1 January 2008, as much information as possible on their 
individual priority needs for technical and financia l cooperation in order to assist them taking steps 
necessary to implement the TRIPS Agreement".  As the Council had been pr eviously informed, the 
national workshops that the WTO Secretariat had recently organized for LDCs had included components geared towards this type of needs assess ment.  He urged LDCs that were interested in 
such activities to contact the Secretariat. 
116. The Council took note
 of the statements made. 
K. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS (PART III OF THE TRIPS  AGREEMENT ) 
– COMMUNICATION FROM SWITZERLAND  
117. The Chairman  said that this item had been put on the Council's proposed agenda at the request 
of the delegation of Switzerland, dated 23 May 2007.  The Council had received a communication 
from Switzerland entitled "Enforcement of Intellectual Property rights:  Communication and 
Coordination as a Key to Effective Border Measures" (IP/C/W/492). 
118. The representative of Switzerland  said that his delegation wished to share through the 
communication its experience in implementing border me asures as required by Section 2 of Part III of 
the TRIPS Agreement.  The submission dealt with the specific aspect of communication and 
coordination between the customs, the government en tity responsible for the administration of border 
measures, and other stake holders which contributed  to the workability and effectiveness of border 
measures. 
119. Custom authorities could effectively carry out th eir role in a national enforcement strategy 
only if they had the relevant information at their di sposal to identify consignm ents suspected of being 
counterfeit or pirated goods.  Such information had to be first provided by the right holder.  Then it 
had to be linked with other information that custom s authorities already had, as well as with that of 
other government agencies dealing with counterfe iting and piracy.  Without such information and 
coordination, border measures might remain inef fective.  The submission described the main 
communication and cooperation channels which, in  Switzerland's experience, were necessary for 
targeting counterfeit and pira ted products at the border. 
120. Information and documentation delivered proactively to customs authorities by the right 
holder was in many cases a pre-requisite for the e ffective action by custom authorities.  Prompt 
cooperation of the right holder with customs author ities was thus crucial and not only at the initial  IP/C/M/54 
 Page 21 
 
 
  stage of the application for border measures but throughout the period during which the measures 
were valid.  In Switzerland, this was normally tw o years before a renewal was required for such 
measures to apply. 
121. The submission also discussed communication and coordination within the Swiss customs 
administration.  Efficient information sharing to ensu re the flow of relevant data between the central 
customs agency and various customs offices at th e border was facilitated by electronic information 
platforms and databases that enabled the establishmen t of specific risk analysis for regional customs 
offices.  Communication and cooperation with nei ghbouring countries and the role of regional and 
international coordination were also vital. 
122. Furthermore, the submission looked at comm unication and coordination between the Swiss 
customs authorities and a number of other gover nment agencies.  Effective and expeditious 
application of border measures to  detect and seize c ounterfeit and pirated goods by the customs 
depended on know-how of a nd cooperation with such agencies.  The submission described in more 
detail the cooperation between the Swiss customs authorities and the Swiss Federal Institute of 
Intellectual property, as well as Swissmedic, the government agency responsible for marketing 
approvals and control of medicin es.  Cooperation between the cust oms and Swissmedic had become 
very important with the worldwide problem of grow ing counterfeiting of medicines, not least due to 
the increasingly common distribution of counterfeit medicines over the Internet. 
123. This example showed that, while customs aut horities were making an important contribution 
in intercepting counterfeit and pirated goods on  their way from manufacturers to consumers, 
additional efforts were also needed to draw consumer s' attention to the risk and damage resulting from 
counterfeiting and piracy.  While the majority of consumers might be victims of counterfeiting and 
piracy, others were deliberately buying such illegal goods. 
124. While the Swiss customs authorities were a ttempting to create a net with their border 
measures to seize counterfeit and pirated goods, they were aware that they might not be able to 
systematically prevent small consignments from slipping through.  For this reason, it had been 
decided that public awareness needed  to be raised in Switzerland to discourage people from buying or 
ordering such products over the Internet. 
125. To address the problem of counterfeiting and piracy at the national level in a more 
comprehensive and inclusive manner, Switzerland ha d launched in 2005 a pub lic-private partnership 
through the establishment of an anti-counterfeiting a nd piracy platform called "Stop Piracy".  This 
platform aimed, inter alia , to better address the challenge of improving cooperation regarding and 
coordination of border measures to allow their enhan ced application and administration in the area of 
intellectual property.  The submission presented the f unctioning of that public/private partnership in 
more detail and its public awaren ess campaign.  Switzerland had f ound that systematic coordination 
and communication between customs authorities and stak eholders played a key role in enhancing the 
effectiveness and workability of a border measures. 
126. Switzerland hoped that the submission on particul ar aspects of its experience with border 
measures would contribute to a fruitful discussion in the Council.  A constructive exchange of 
Members' experiences would facilitate the task of domestic implementation of the TRIPS provisions 
on border measures.  Switzerland hoped to learn from other Members in that respect.  Particular problems and needs faced by Members, especially by  developing countries, in the context of such 
implementation should also be discussed.  In this way, such problems could be appropriately taken 
into account in international technical cooperation and assistance. 
127. The representative of Japan welcomed Switzerland's submission.  As regards the suspension 
of infringing goods by the Japanese customs, th e number of cases had increased from about 2,800 in IP/C/M/54 
Page 22  
 
  2001 to 19,600 in 2006, almost seven fold over six years.  Effective implementation of the TRIPS 
provisions on border measures was one of the most important means of combating the expanding problem of counterfeiting and piracy.  Receiving a nd managing information in an appropriate manner 
was essential for enforcement to be effective.  Th e Swiss document was valuable to his delegation, 
since it provided details on how to gain inform ation from right holders through an application 
procedure and how to analyze and share such info rmation within the customs.  His delegation was 
particularly interested in the easy-to-use checklis t and would appreciate concrete examples and more 
information on it. 
128. Sharing of past experiences and methods, such as those of Switzerland, the United States and 
the European Communities, should be continued in  the Council.  This would provide each Member 
more alternatives in combating counterfeiting and piracy.  In order to contribute to this discussion in a 
constructive manner, Japan would be pleased to introduce its experiences on border measures at a 
future meeting. 
129. The representative of Canada
 said that counterfeiting and piracy was a growing global 
problem with serious effects in areas of economy,  public health and safety and concerns over the 
growing involvement of organized crime.  In light  of this, Canada was reviewing its enforcement 
system and hoped soon to be able to update its practices.  Although the TRIPS Agreement was clear 
that each country could develop and implement its ob ligations within its own national context, it was 
still useful to see the experiences of other countries and how they had developed their systems.  In this 
respect, the Swiss document was very useful, and it described many helpful approaches that were 
similar to those applied by Canada. 
130. As regards information flows from right holders  to customs authorities discussed in the Swiss 
paper, she agreed that the involvement of ri ght holders was important  for effective border 
enforcement, and that coordination and comm unication among enforcement authorities was an 
effective means of working together to address th is common problem.  While Canada had taken some 
steps toward cooperation with neighbouring countries and international agencies such as Interpol and 
the WCO, it was always looking for ways in whic h to improve its enforcement efforts.  The 
information provided in the Swiss paper on fake  pharmaceuticals and public awareness campaigns 
was useful for her delegation, and she encouraged ot her Members to cooperate further in this regard 
by sharing their experiences. 
131. The representative of the United States  thanked Switzerland for its paper and welcomed the 
interventions made by Japan and Canada.  He also  welcomed the continuation of the dialogue in the 
Council on the implementation of the enforcemen t obligations under the TRIPS Agreement and on 
identifying solutions to implementation deficienci es.  The concepts outlin ed in the recent joint 
submission by the European Communities, Japan , Switzerland and United States represented a 
reasonable way forward in approaching discussions on Part III of the Agreement.  He acknowledged 
the fact that complete consensus did not  exist in the Council on these issues. 
132. At the Council's previous meeting, a number of questions had been posed by Japan and 
Switzerland regarding the US customs and border protection programme on risk modelling and post-
entry verification, based on a paper his delegati on had submitted for discussion  These questions were 
also relevant to the discussion of the Swiss paper.  In addition to responding briefly and thematically 
to them, he said that his delegation was ready to go into further details in direct customs to customs 
discussions. 
133. In developing risk-modelling, i.e. a means of identifying potential infringing shipments, the 
US customs and border protection initially consid ered more than one hundred factors derived from 
US Customs entry data.  US Customs authorities used statistical analysis to determine which of these 
factors were the most predictive of intellectual property infringement among shipments entering the  IP/C/M/54 
 Page 23 
 
 
  United States and incorporated these factors into a risk model.  US Customs authorities also included 
analytical data developed by other US government agencies into the risk model.  The risk model 
therefore incorporated both objective entry data  and subjective analytical data.  Individual 
applications for border measures as filed by th e right holder were individually reviewed and 
shipments were targeted for inspection as appropria te using targeting methods geared to specific 
information.  The risk model was designed for ta rgeting areas where specific information about a 
suspected violation was lacking.  The results of inspection based on right holder applications 
contributed to the data that was then used in th e risk model to identify future possible instances of 
intellectual property infringement.  The risk mode l for IPR infringement was based on statistical 
analysis while other targeting systems were based on intelligence information and personal 
experiences of customs officers.  This type of statis tical methodology could be a pplied to entry data to 
determine origin specific risk factors to predic t potential intellectual property infringement.   
134. The intellectual property risk model was a decision support tool that assisted officers in 
targeting high risk shipments for inspection that generally would have gone undetected.  For example, 
as a result of the review of risk scores from the model, US Customs authorities recently seized a 
shipment of counterfeit athletic shoes valued at more than US$500,000 based on the value of the 
counterfeit goods which was significantly less than the value of the actual copied goods.  This 
shipment had not been identified as high risk by the traditional targeting systems.  He said that US 
customs authorities would be happy to provide further information on the methodology used to develop the risk model in customs to customs discussions. 
135. Turning to another theme in the US paper, na mely post entry verification, he said that 
companies were selected for post entry verifications  or IPR audits based on their imports and their 
IPR compliance history.  Participation in IPR a udits by selected importers was compulsory.  US 
Customs authorities considered such factors as past IPR violations, and the im port levels of individual 
companies in selecting companies for post entry verifications.  US Customs and border protection staff of regulatory auditors performed audits fo r a variety of customs matters and among them was 
intellectual property rights.  An oversight office in the US Customs and border protection 
headquarters oversaw nine field officers.  The ti me required for an IPR audit varied depending on 
whether violations had been uncovere d and the nature of the violations .  He said that his delegation 
would welcome any comments on this, including any accounts of enforcement experiences that others 
might wish to share. 
136. He found the Swiss paper very helpful on the issues of communication and cooperation in the 
field of border measures.  It elaborated on a numb er of general themes on information sharing and 
targeting of shipments and where to look for infringing products.  In particular, he wished to echo Switzerland's assertion on the importance of access to  databases in an effective border enforcement 
regime.  Like Switzerland, the US Customs and bor der protection maintained a database in which it 
recorded information from applications filed by ri ght holders.  Certain aspects of this information, 
including contact information for the right owner, were available on the US Customs and border 
protection website.  Other customs administrations were welcome to use this resource in order to 
identify and contact right holders.   
137. Switzerland's suggestion concerning improved regional and international cooperation by 
means of a centralized database for customs aut horities was an interesting one.  He encouraged 
Switzerland to expand further on the directly accessibl e database concept.  In particular, who would 
develop and maintain such databases?  Would th ey be developed and maintained, for example, 
through an international organiza tion and how would one deal with rights that might be owned by 
different parties in different countries, or be enfo rceable in one country but not in another?  Finding 
the discussion on how suspicious shipments were handl ed by the Swiss customs authority interesting, 
he said that he would welcome more detail on this  process from initial detention of suspicious goods 
to the seizure and destruction of the goods once they were found to be infringing. IP/C/M/54 
Page 24  
 
  138. He welcomed the Swiss discussion of counterfeit pharmaceutical products, which was in line 
with Canada's comments on the matter.  This issue was becoming very serious and was threatening the health and safety of consumers worldwide.  He found the relationship between the Swiss Customs 
and Swissmedic very inte resting.  He wondered whether his unde rstanding was correct that in the case 
of counterfeit pharmaceuticals, the right holder did not have to become involved, and asked 
Switzerland to elaborate exactly how the process worked. 
139. He concluded by saying that his delegation would welcome an on-going dialogue in the 
Council on the issues raised in Switzerland's pape r and beyond in order to provide Members with 
more perspectives on IPR enforcement. 
140. The representative of New Zealand
 said that, under Article 69 of the TRIPS Agreement, 
Members had agreed to exchange information on trade in infringing of goods.  It was in the context of 
this Article that New Zealand welcomed the contribution from Switzerland on the role of 
communication and coordination structures in effect ive border management.  The growing trend in 
intellectual property crime was worrying.  The trad e in infringing goods represented a significant and 
increasing proportion of world trade.  New Zealand's experience at the border mirrored that of many 
Members.  New Zealand had experienced a significant increase in the detention of intellectual 
property infringing goods wher e customs detentions had increased by over 400 per cent since 
July 2000.  This compared with the figure of 700 per cent quoted earlier by Japan over a similar time 
period.  He agreed with the concluding paragra ph 27 of Switzerland's paper which stressed the value 
of exchange of Members' experiences.  New Zealand was a country with a large border relative to its 
population and economy and thus ways in which to im prove efficiency and effectiveness of its border 
management were always being sought.  His delegation derived great value from hearing about 
experiences of other Members in this forum. 
141. The representative of the European Communities  said that his delegation was grateful to 
Switzerland for sharing its experiences.  He agreed that systematic communication and coordination among the relevant stakeholders, in cluding government agencies and private sector, was essential for 
effective border measures.  He supported the vi ew that communication and coordination efforts 
needed to be extended to regional and international levels, consideri ng the trans-national dimension of 
border measures. 
142. In the European Union, border measures were becoming more effective as a result of better 
communication and coordination among customs servi ces.  This was illustrated by statistics showing 
seizures of counterfeit and pirated goods at the EU border for the year 2006 which had been published 
by the Commission the week before.  The statistic s were established by the Commission on the basis 
of data which had been transmitted by the EU member States and the information by the customs, including data on good description, qualities, origin, mean s of transport and the type of IP right that 
had been infringed.  Such statistics provided ve ry useful information to support analysis of 
counterfeiting and piracy in the EU and the de velopment of appropriate counter-measures. 
143. Reliable figures were necessary to better unde rstand this phenomenon which was becoming a 
global problem.  The statistics for 2006 showed that the number of cases taken by the customs 
involving goods infringing IPRs as well as the number of goods seized had increased dramatically since the previous year:  over 300 per cent repr esenting an increase from 75 million articles to 
250 million articles of counterfeit and pirated goods sei zed, and in terms of the number of cases the 
increase was from 26,000 to 36,000 cases.  Even more worrying was that the number of cases of 
goods threatening consumers' health had increased dr amatically.  In the EU, 2.7 million counterfeit 
medicines, 1.1 million food stuff and beverages, a nd 1.5 million cosmetics had been seized.  It was 
interesting to note that one country was the source of  origin of 80 per cent of counterfeit articles.  A 
more thorough analysis revealed that the number one source for counterfeit medicines was a different  IP/C/M/54 
 Page 25 
 
 
  country.  A thorough analysis for each type of goods was required.  The details of these statistics were 
available on the website of the European Commission Customs Service. 
144. In concluding, he said that his delegation re mained fully committed to exchanging views and 
experiences on IPR enforcement in the Council and hoped that other Members would show the same 
engagement.  The objective was to address IPR enforc ement in good faith and constructive spirit, with 
a view to sharing experiences and best practices  and finding practical solutions to problems 
encountered. 
145. The representative of Brazil  said that it was his understanding that enforcement was not an 
item on the Council's permanent agenda, and that it ha d been put on the agenda of the present meeting 
at the request of a Member.  Enforcement was not covered by the Council's mandate.  The right place 
to resolve disputes regarding the implementation of  the TRIPS Agreement was the Dispute Settlement 
Body.  Furthermore, it was useless to duplicate effo rts that were being undertaken in other forums.  
The WIPO Advisory Committee on Enforcement pr ovided a forum for the exchange of national 
experiences.  Work on the issue was underway also  at the World Customs Organization and Interpol. 
146. Pursuant to its Article 1.1, Members were free to determine the appropriate method of 
implementing the Agreement.  Article 41.5 provid ed that nothing in the Agreement created any 
obligation with respect to the dist ribution of resources between the a pplication of law in general and 
the application of intellectual property law.  A ny discussion on the issue of enforcement should be 
balanced and should take into account that the im plementation of the Agreement as a whole and not 
be narrowed to Part III.  He emphasized the importa nce that Brazil attached to Articles 7 and 8 which 
acknowledged the promotion of competition and the pub lic interest in sectors of vital importance to 
countries.  As to the discussion on border measure s, he recalled that Article 41.1 provided that 
"procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade 
and to provide for safeguards against their abuse". 
147. The representative of India  said that the concerns of negotiators during the long and arduous 
TRIPS negotiations were evident from Article 41.1.  Article 41.5 provided critical insights into 
understanding the delicate balance of rights and obligations that had been achieved during the 
negotiations.  In discussing Part III, one therefore had to bear in mind that the existing text reflected a 
delicate balance between the interests of right holde rs and those wrongly accused of being infringers.  
In order not to create obstacles to legitimate trad e, Article 41.5 took into account the concerns about 
limited resources of developing country Members to enforce intellectual property laws.  The text of 
Part III also recognized that IPRs were private right s and that action to enforce them should be taken 
by right holders themselves. 
148. The representative of China expressed support for the interventi ons made by Brazil and India. 
149. The representative of Switzerland  said that his delegation would respond to the questions 
posed to it at the next opportunity.  Responding to the concerns expressed, he said that it was not his 
delegation's intention to question the flexibilities that Members had under the Agreement, including 
under Articles 1.1 and 41.5.  Its intention was to learn from each other and to share experiences which 
could facilitate the task which many faced in im plementing the TRIPS provisions on border measures 
in an effective and efficient manner.  He believed th at this would also be for the benefit of Members 
who were still in the process of implementing the relevant provisions, includi ng LDCs who were not 
yet obliged to implement certain measures but c ould still benefit from other Members' experiences. 
150. The Council took note  of the statements made. IP/C/M/54 
Page 26  
 
  L. I
NFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO 
151. The Chairman  said that, by means of a communication dated 10 April 2007, the United States 
had requested consultations with China regarding measures affecting the protection and enforcement 
of intellectual property rights (IP/D/26).  The following Members had requested to join these 
consultations:  Japan, the European Commun ities, Canada and Mexico (WT/DS362/2-5). 
152. Turning to the status of acceptances of the Protocol Amending the TRIPS Agreement that was 
done at Geneva on 6 December 2005, the Chairman  said that since the Council meeting held in 
February 2007 the following Members had deposite d their instruments of acceptance:  India on 
26 March, and the Philippines on 30 March; (documen ts WT/Let/572 and 573, respectively).  As of 
then, 7 Members had accepted the Protocol.  The S ecretariat had circulated an update to the note on 
the status of acceptances of the Protocol that the C ouncil had requested it to prepare at its meeting in 
October (IP/C/W/490).  As had been indicated by the previous Chairman, the Secretariat would continue to update it periodically.  The Chairman  recalled that the Protocol was open for acceptance 
by Members until 1 December 2007 or such later da te as might be decided by the Ministerial 
Conference.  As this date was less than six months away, he encouraged Members to ensure that 
necessary measures were being taken in their capitals to allow the consideration of the acceptance in a 
timely fashion. 
153. The Council took note
 of the information provided. 
M. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS  
154. The Chairman  said that the list of 17 pending requests for observer status in the TRIPS 
Council by other intergovernmental organizations wa s contained in document IP/C/W/52/Rev.11.  He 
recalled that the Council had discussed these pending re quests at its previous meetings, but had not 
been able to reach consensus on any of them. 
155. The representative of Brazil  said that the Secretariat of the Convention on Biological 
Diversity (CBD) had asked quite some time ago to be  granted observer status in the Council.  In the 
last session, Brazil and India had supported this, while other Members had not been vocal on this 
question.  While this could not be  construed as consensus, the issue had been pending for too long and 
the organization that had made re quests should be given an adequate  response.  The issue was being 
handled by the Committee on Trade and Environmen t (CTE) and there were proposals before its 
Special Session (CTESS) regarding paragraph 31(ii) of the Doha Ministerial Declaration which 
referred to cooperation among secretariats of multilate ral environmental agreements (MEAs) and the 
WTO Secretariat, as well as to criteria on how MEA secretariats could acquire observer status in the 
relevant WTO bodies.  The CTESS had a mandate to  agree on the criteria for observership across 
different relevant WTO bodies, which included the TRIPS Council.  He believed that there was a 
forward movement in the CTESS on this issue based on proposals made by certain Members, such as 
Canada, Australia and the United States.  The Council should either decide to accept the CBD 
Secretariat's request for observer status in the Counc il, or at least send to it information on the forward 
movement in the WTO on this matter. 
156. The criteria that had been discussed in the CTESS referred to a direct interest in the subject-
matter that was being discussed in a particular bod y as the basis for a positive decision.  It was his 
understanding that it had been clear for some time that  the CBD Secretariat had a direct interest in at 
least three agenda items that featured on the Counc il's agenda and which referred to the relationship 
between the CBD and the TRIPS Agreement.  Ther e could not be clearer evidence for indicating a 
direct interest justifying the Council to grant observe r status to the CBD Secretariat.  He suggested 
that the Council either resolve the issue straight away by a positive response to the request from the 
CBD Secretariat or charge the Chair with the task  of offering a response to it which would indicate  IP/C/M/54 
 Page 27 
 
 
  the forward movements that had been occurring in the WTO regarding the elaboration of the criteria 
for a decision in this respect. 
157. The representatives of India , China  and Cuba  supported the statement made by Brazil. 
158. The representative of the United States,  recalling that the representative of Brazil had begun 
his statement by noting that it did not reflect consen sus, said that, for example, the United States could 
not join consensus on this issue at that time. 
159. The representative of Chile  said that, although his delegation was not active on the three 
issues referred to by Brazil, he supported the in terventions made by India, Brazil and Cuba. 
160. The Chairman  suggested that he hold informal consultati ons in an effort to resolve the matter. 
161. The representative of Brazi l said that he understood that, in light of the US intervention, there 
was no consensus on granting observer status to the CBD Secretariat.  He wondered whether 
Members would be opposed to the Chair informing the CBD Secretariat of the debate at the present 
meeting and other relevant deve lopments.  He thought there would be value in the Chair holding 
consultations.  The Council's discussion had a di rect link with the on-going work in the CTESS, 
which had a horizontal mandate to agree on the criteri a for observership in issues relating to trade and 
environment across different bodies in the WTO.  The proposed informal consultations could also 
provide Members with updated information on deve lopments in the CTESS relevant to this issue, 
which would enable a broader a nd better informed discussion. 
162. The Chairman  said that he believed that it might be best to take the decision as to whether the 
Council should get back to the CBD Secretariat after informal consultations had taken place. 
163. The Council agreed  to proceed as suggested by the Chair. 
N. OTHER BUSINESS  
164. The Chairman  said that, as had already been discussed under previous agenda items, the 
Council was to take up at its October meeting its annual reviews of technology transfer under 
Article 66.2 and technical coopera tion under Article 67.  He remi nded Members of certain other 
reviews that would also be on the agenda of that meeting.  The Council would need to hold its fourth 
annual review under paragraph 8 of  the Decision on the Implementation of paragraph 6 of the Doha 
Declaration on TRIPS and Public Health, and re port on its operation to the General Council.  
Furthermore, the Council would have on its agenda the sixth transitional review under Section 18 of 
the Protocol of the Accession of the People's Republic of China. 
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